Legal malpractice; The “last treatment rule”; Levy v Martin; “Investigation” & “indictment”

Holding that questions of fact existed as to when the legal malpractice claims accrued, the court found that the trial court erred by granting summary disposition for defendants-Dykema Gossett, Brady, and Magyar based on the statute of limitations. After learning “that he was being investigated in relation to a ‘nationwide investment fraud scheme,’” plaintiff sought legal counsel from defendants. In 4/13, they sent him an engagement letter outlining “the terms of the retainer agreement.” In 10/18, plaintiff sued alleging “legal malpractice in relation to defendant’s pre-indictment representation. Specifically, plaintiff alleged that he would not have been indicted but for Brady and Magyar’s malpractice and that Dykema was vicariously liable for their malpractice.” On appeal, he argued that the “last treatment rule” outlined in Levy controlled. Given the facts here, the court found “that ‘[i]nvestigation’ and ‘indictment’ are technical terms.” Further, although “the terms are different, they are not fundamentally inconsistent.” While the letter referenced “indictment,” it appeared “that defendants were referencing the term ‘[i]nvestigation’ when attempting to define the scope of ‘the matter.’ The use of the two terms could demonstrate a distinction between the pre- and post-indictment proceedings. It is also noteworthy that the subject of the letter is ‘[i]nvestigation,’ as opposed to a general term such as ‘criminal matter.’ Thus, the term ‘[i]nvestigation’ is subject to more than one interpretation, thereby rendering the contract ambiguous.” Given that the parties’ intent was not clear from the plain language of the 4/13 agreement, there were questions of fact for the trier of fact. The court concluded that “whether the last treatment rule dictates the outcome in this case depends on interpretation of the [4/13] engagement letter.” Reversed and remanded.